Crescent Towing Co, et al v. Collins, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 20, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60687
Summary Calendar
CRESCENT TOWING & SALVAGE CO. and THE AMERICAN LONGSHORE MUTUAL
ASSOCIATION, LTD.,
Petitioners,
versus
ELMER J. COLLINS, JR., DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
--------------------
Petition for Review of an Order of the
Benefits Review Board
BRB No. 05-7083
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Crescent Towing & Salvage Company (“Crescent”), appellee’s
employer, and The American Longshore Mutual Association, Ltd.
(“ALMA”) appeal the Benefits Review Board decision and order,
upholding the award of benefits under the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901, et seq. by an
Administrative Law Judge (“ALJ”) to appellee, Elmer J. Collins.
Collins suffered an undisputed back injury at work; he contended
that a later episode of atrial fibrillation was triggered by an

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epidural steroid injection administered to treat his back injury.
The appellants contend that: (1) the ALJ erred in denying their
motion to strike the testimony of Collins’s treating cardiologist;
(2) the evidence was insufficient to trigger the Section 20(a)
presumption; (3) the Section 20(a) presumption was rebutted; (4)
Collins’s condition was not caused by his work-related injury; (5)
Collins is not entitled to temporary total disability benefits; and
(6) despite suitable alternative employment identified, Collins
failed to perform a diligent job search.
We review the BRB only to consider “errors of law and [to]
mak[e] certain that the BRB adhered to its statutory standard of
review of factual determinations, that is, [to determine] whether
the ALJ's findings of fact are supported by substantial evidence
and are consistent with the law.” Ortco Contractors, Inc. v.
Charpentier, 332 F.3d 283, 287 (5th Cir. 2003)(internal quotes and
citations omitted).
The ALJ did not err in admitting the testimony of Collins’s
treating cardiologist. As the appellants concede, the ALJ is not
bound by the formal rules of evidence or the cases interpreting
such. See 33 U.S.C. § 923(a); the ALJ was within his discretion to
admit this testimony. See Atlantic Marine, Inc. v. Bruce, 661 F.2d
898, 900 (5th Cir. 1981); see also Patterson v. Omniplex World
Services, 36 BRBS 149(2003).

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1 33 U.S.C. § 920(a).
We also find no error in the ALJ’s decision that the evidence
was sufficient to invoke the 20(a)1 rebuttable presumption, that
the employer failed to rebut it, and that Collins carried his
burden of persuasion that his condition is causally related to his
work injury. Under the LHWCA, a claimant must prove a prima facie
case for coverage, which consists of proof that (1) an injury was
suffered, and (2) the injury occurred in the course of employment
or was caused, aggravated or accelerated by conditions at the work
place. Ortco, 332 F.3d at 287 (citing Conoco v. Director, Office
of Worker’s Compensation Programs, U.S. Dept. of Labor, 194 F.3d
684, 687 (5th Cir. 1999). Once he does so, the 20(a) presumption
that the injury is work-related and that the claimant is entitled
to coverage is triggered. Id. To avoid coverage, the burden
shifts to the employer to affirmatively rebut the presumption with
“substantial evidence to the contrary.” Id. This evidentiary
standard is less demanding than proof by a preponderance of
evidence. Id. If the employer is successful in rebutting the
presumption, the ALJ must assess the issue of causation by looking
at all record evidence. Id. at 290.
The fact that Collins suffered an injury is undisputed, and
Collins’s board-certified cardiologist stated that it is much more
likely than not that the claimant’s initial episode of atrial
fibrillation was triggered by the epidural injection. His opinion
qualifies as substantial evidence to support the ALJ’s finding that

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the Section 20(a) presumption was triggered. Further the employer
did not rebut the presumption with substantial evidence to the
contrary. Though the employer offered the testimony of another
cardiologist who opined that Collins sustained a lone episode of
atrial fibrillation, i.e., a spontaneous condition, the ALJ is
entitled to weigh the evidence, assess the credibility of the
witnesses, and draw inferences and conclusions from the evidence.
Id. at 292.
The ALJ did not err in finding that Collins is entitled to
temporary total disability benefits. Once a claimant has
demonstrated that he is unable to perform his former longshore
employment due to his job-related injury, he has made a prima facie
case of total disability. SGS Control Services v. Director, Office
of Worker's Compensation Programs, U.S., 86 F.3d 438 (5th Cir.
1996) (citing Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122,
127 (5th Cir. 1994)). The burden then shifts to the employer to
rebut the prima facie showing by establishing that the employee is
(1) capable of performing (2) other realistically available jobs.
Id. (citing Abbott, 40 F.3d at 127). The claimant, by virtue of
his age, education, work experience, and physical restrictions must
be capable of performing these jobs. Ledet v. Phillips Petroleum,
Co., 163 F.3d 901, 905 (5th Cir. 1998). Once an employer makes
this showing, the burden shifts back to the claimant to show that
he diligently looked for work and was unable to find a job. Ceres
Marine Terminal v. Hinton, 243 F.3d 222, 225 (5th Cir. 2001)

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(citing New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
1040 (5th Cir. Unit A.1981)). In the instant case, substantial
evidence supports the ALJ’s determination that Collins presented a
prima facie case of disability. Further, because the record
supports the finding that Collins could not perform any work, there
is no suitable alternative employment available to him.
For the foregoing reasons, we AFFIRM.

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